Young v. St. Paul City Railway Co.
| Citation | 170 N.W. 845,142 Minn. 10 |
| Decision Date | 07 February 1919 |
| Docket Number | 21,102 |
| Parties | MARY A. YOUNG, ADMINISTRATRIX, ETC. v. ST. PAUL CITY RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $10,000 for assault and battery. The answer was a general denial. The case was tried before Brill, J., who when defendant rested denied its motion for a directed verdict, and a jury which returned a verdict for $2,500. From an order denying its motion for a new trial, defendant appealed. Affirmed.
Continuance -- because of failure to secure testimony.
1. There is no hard and fast rule for determining whether an application for a continuance should be granted or denied. Courts are properly inclined to be liberal in granting it where it is requested because of defendant's inability to procure the testimony of an employee whose wrongful acts gave rise to plaintiff's cause of action.
Continuance -- when party has shown lack of diligence.
2. There is no abuse of discretion in refusing to grant a continuance because of defendant's lack of diligence in securing the testimony of an employee, where it appeared that issue was joined four months before the case came on for trial, and that no attempt to secure the attendance or procure the testimony of such employee was made until the day before the trial began, when defendant first discovered that he had left its employ and gone to a distant state several weeks theretofore.
Assault and battery -- damages not excessive.
3. A verdict for $2,500 is not excessive, where there is evidence which would justify the jury in finding that plaintiff, while a passenger on one of defendant's street cars, was the victim of an unprovoked assault at the hands of defendant's motorman and that, as a consequence pulmonary tuberculosis, latent in his system, developed from a state of arrested progress to one of activity.
R. T. Boardman, for appellant.
Samuel A. Anderson, for respondent.
This is an appeal from an order denying a motion for a new trial after a verdict in respondent's favor for $2,500.
1. Issue was joined January 25, 1918. The complaint alleged that on November 21, 1917, while plaintiff was a passenger on one of defendant's street cars, he was assaulted by the motorman in charge of the car. Notice that the case would be called for trial on June 10, 1918, was sent out by the clerk of the district court about two weeks prior to that date. The case came on for trial on June 11. Defendant on that day applied for a continuance, on the ground that the motorman charged with having committed the assault was then a resident of Portland, Oregon. No subpoena had been served upon him, and none was issued. Through an oversight of someone in defendant's service, the fact that the motorman had ceased to be an employee was not communicated either to defendant's legal department or claim department, which have exclusive charge of the defense of actions brought against it. Apparently it was assumed by its representatives that the motorman had remained in its employ from the time of the assault to the time of the trial. If he had remained, it appeared that his attendance as a witness could have been secured on an hour's notice. Not until June 10 was it discovered that the motorman had ceased to work for defendant and had left the state some three or four weeks theretofore. The trial court refused to grant a continuance, and this is the basis of the first assignment of error. Plaintiff declined to admit that the absent witness would give the testimony set forth in the affidavit for continuance, insisting that there was no showing of the exercise of diligence on the part of defendant in attempting to secure his attendance. That view was adopted by the court and defendant forced to go to trial without the benefit of the motorman's testimony. Undoubtedly defendant was handicapped in making its defense by its inability to produce the testimony of the motorman.
There is no hard and fast rule for determining whether an application for a continuance should be granted or denied. The right of the parties to have a speedy trial should be considered on the one hand, and, on the other, the substantial rights of a party should not be prejudiced by forcing him to go to trial when he cannot reasonably be expected to do justice to his case. In cases such as we have here, courts are properly inclined to be liberal in granting continuances. Where the absent witness is the person whose acts give rise to de...
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